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Last Updated: Monday, 19 June 2006, 14:21 GMT 15:21 UK
Vocal judiciary nothing new
By Jon Silverman
Legal affairs analyst

Judges have spoken out before

Senior judge Keith Cutler has taken the unusual step of speaking out against criticism of his profession.

Judge Cutler said colleagues were "pretty low" after criticisms over sentencing of serious offenders.

But when it comes to crime and punishment, memories are notoriously short.

Claims that it is unprecedented for a serving judge to speak out on sentencing are not true. In 1994, when there was also a backlash against a Criminal Justice Act (1991) perceived by some as too liberal, Judge Rhys Davies, the resident circuit judge in Manchester, sought to put into context criticisms that sentences were too lenient.

He pointed out that judges were actually imposing heavier sentences for many serious crimes because public opinion demanded it.

But more than a decade later, it is clear that sentencing issues have strained the relationship between executive and judiciary to a pitch described by one former senior crown court judge, Gerald Butler, as "open warfare".

He said: " I can't recall ministerial attacks on individual judges before. In the past, ministers tended to respect the dividing line between a general commentary on sentencing and making what are usually ill-informed comments on the decisions of a particular judge."

Judicial interpretation

Many believe that the ground rules were changed by the Human Rights Act.

Comments made by ministers following the recent decision of Mr Justice Sullivan, in the case of the Afghan hijackers, display a frustration over what is seen as common sense thwarted by judicial interpretation of the act.

When I sit on the bench, I have a pile of books with me to make sure that I get the sentencing right and that I am not appealed
Diana Ellis

But the act was passed by this government, as was the 2003 Criminal Justice Act, which has been blamed for the sentence passed on the paedophile Craig Sweeney.

QC and part-time judge Diana Ellis said: " It's understandable that judges are feeling particularly sensitive.

"Much of the criticism should really be aimed at sentencing guidelines over which they have no flexibility.

"When I sit on the bench, I have a pile of books with me to make sure that I get the sentencing right and that I am not appealed."

Like many other judges, she was surprised by the timing of the disclosure by the attorney general of the number of "unduly lenient" sentences he had taken to the Court of Appeal.

"Where is the publicity given to the number of times judges are successfully appealed because they have imposed too heavy a sentence?" she asks.

'Utterly depressed'

It would be a mistake to think that criticism - whether from ministers or the media - does not bother the bench.

Gerald Butler recalls that a former colleague, the recorder of London, James Miskin, was "utterly depressed" by an attack in the Evening Standard.

"He kept the cutting on his desk to remind him."

Judge Butler, himself, sometimes took a more robust approach.

When former Home Secretary Michael Howard wrote to the Lord Chancellor, criticising him, he wrote back saying that Mr Howard knew nothing about the law.

Mr Howard, like most home secretaries was, of course, a lawyer.

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